Editorial: Wiretapping a no-go

Monday, Sept. 11, 2006 | 7:30 a.m.

Legislation that would have authorized President Bush to continue his warrantless domestic wiretapping program failed to survive a Senate committee's scrutiny last week, one day after six senators told the bill's sponsor that, without alterations, the bill would fail.

Sen. Arlen Specter, Senate Judiciary Committee chairman and sponsor of the legislation, blamed political "obstructionism" for the bill's failure. Sen. Russell Feingold, D-Wis., took up about a quarter of the committee's two-hour meeting to speak in opposition of the measure. Feingold and five other senators - three of whom are Republicans - said the measure gave the president too much latitude and too little oversight.

Bush created the National Security Agency's domestic surveillance program after the Sept. 11 terrorist attacks in 2001. It authorized the NSA to secretly monitor telephone calls and e-mails between Americans and people overseas who were connected to suspected terrorists. The New York Times first revealed the program's existence in December.

Last month a federal judge in Detroit ruled that the program violated the constitutional separation of powers and also violated free speech and privacy rights. The White House is appealing that ruling. But Bush hoped Specter's bill would provide an end-run around the court's ruling. Under an existing 1978 law, the president has up to three days after wiretaps of overseas communications have begun in which to obtain a warrant from a secret court that is established through the law.

Specter's legislation would have submitted the program to a one-time constitutional review and expanded the warrant deadline to seven days. The attorney general would have been required to report the activity to congressional intelligence committees only twice a year. But the Senate Judiciary Committee ran out of time before it could vote on the measure Thursday.

This bill was destined to fail - and rightly so. Current law already allows the president three days to come up with justification for secretly wiretapping overseas communications. It is unclear why Bush would need a new program with blanket constitutional approval with less oversight. It was poorly crafted legislation that sought to place the president above the law.